Motsepe v Khoza customary marriage and child[3]

[6] I am satisfied that the applicant has set out facts, which if proved, will sustaina finding that the parties were customarily married on 21 May 2011, and theseincludes:(a) The applicant is 48 years of age, and the respondent 62 years of age. That is,both are above the age of 18 years.(b) The applicant and the respondent agreed to be married to each other.(c) The applicant and the respondent agreed to marry each other in acustomary marriage.(d)). The elders of the families of the two parties met and negotiated acustomary marriage for the parties.(e). There was an amount paid by the elders of the respondent to the elders ofthe applicant, which both parties agree it was lobola.(f) The elders of applicant handed her over to the elders of the respondent.(g) The negotiations and payment of lobola was followed by a celebration,which both parties acknowledge.I am satisfied that all these facts, if proved, meets the requirements of section 3of the RCMA, which are the requirements for validity of a customary marriage.Moreover, respondent gave applicant a ring and in communication with thirdparties referred to her as his wife.[7] In my view, this case is distinguishable from Baadjies v Matubela [2002] 2 AllSA 623 (Baadjies case). In my view, in the Baadjies case, the applicant did not setout facts which, if proved, would meet the requirements for the validity of acustomary marriage as envisaged in section 3 of RCMA.[8] In my view, a party to a disputed customary marriage must set out facts, withsufficient particularity as to the requirements for validity of the customarymarriage, and specifically the negotiations and entering into or celebration inaccordance with custom, of the alleged customary marriage; which facts if provedat trial, sustain the conclusion that such a marriage was indeed concluded. Once aparty sets out those facts with sufficient particularity, such party is entitled toequal benefit and protection of the law, which includes that ‘spouse’ in sub‐rule(1) of rule 43 must be interpreted as including such a party to a customarymarriage. Applicant is a spouse as referred to in sub‐rule (1) of Rule 43.LIABILITY OF RESPONDENT TO MAINTAIN APPLICANT’S CHILD, KHATLISOMOTSEPE3

[29] In my view, the following represents a fair, just, informed, reasonable andappropriate order under the circumstances:1. Respondent is ordered to pay the following monthly(a) The mortgage bond instalments of the Morningside property at R17400‐00.(b) The levies of the Morningside property at R1000‐00.(c) Rates, taxes, water and electricity bills of the Morningside property(d) Garden Services at the Morningside property.(e) The medical aid premiums for applicant and any excess medical expenses.(f) Full comprehensive motor insurance(g) Applicant’s cellphone contract to the maximum of R1200‐00.(h) Applicant’s gym and personal trainer fees(i) The Redhill school fees for both minor children.2. Respondent is further ordered to pay applicant’s current liabilities, theindebtedness of which accrued from 21 May 2011 to date, on her accountswith:(a) City of Johannesburg(b) Eskom(c) Redhill School fees(d) Nedbank overdraft(e) FNB overdraft(f) FNB credit cardApplicant’s attorney is directed to submit statements of such accounts torespondent’s attorneys within 30 days of this order.3. Respondent is further ordered to pay to applicant an amount of R40 000‐00per month from 1 May 2013 for the maintenance of herself and her twominor children. The amounts are payable on or before the 7 th of eachsucceeding month.4. Respondent is further ordered to contribute an amount of R30 000‐00towards the legal costs of the matrimonial dispute.5. Costs of this application are to be costs in the main action.9